DCT
2:14-cv-05634
Bally Gaming Inc v. Carey Richardson
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Bally Gaming, Inc. d/b/a Bally Technologies (Nevada)
- Defendant: Carey Richardson d/b/a The iApp Shop (Ohio)
- Plaintiff’s Counsel: Glaser Weil Fink Howard Avchen & Shapiro LLP
- Case Identification: Bally Gaming, Inc. v. Carey Richardson, 2:14-cv-05634, C.D. Cal., 07/21/2014
- Venue Allegations: Plaintiff alleges venue is proper because Defendant offers and sells the accused software applications to residents of California via the internet, including through the Apple iTunes Store, and because Defendant executed a developer agreement with California-based Apple, Inc.
- Core Dispute: Plaintiff alleges that Defendant’s mobile software applications for "Three Card Poker" infringe patents related to methods of playing the card game.
- Technical Context: The patents relate to the rules and wagering structures for casino-style card games, specifically the popular game "Three Card Poker," which has been widely implemented in both physical casinos and electronic formats.
- Key Procedural History: The complaint alleges Plaintiff's extensive licensing of its games and associated intellectual property, but does not mention prior litigation involving the patents-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 1995-07-19 | Earliest Priority Date for '759 and '916 Patents |
| 2001-05-29 | U.S. Patent No. 6,237,916 Issued |
| 2004-03-02 | U.S. Patent No. 6,698,759 Issued |
| 2014-05-XX | Defendant's alleged knowledge of infringement begins |
| 2014-07-21 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 6,698,759 - Player Banked Three Card Poker and Associated Games (Issued Mar. 2, 2004)
The Invention Explained
- Problem Addressed: The patent identifies a continuous need in the casino industry for new games to maintain player interest, particularly games with a plurality of wagering options that can be played rapidly (Compl. ¶¶ 10-13; '759 Patent, col. 1:29-41).
- The Patented Solution: The invention describes a method for a three-card poker game that offers players multiple, distinct wagering opportunities on a single hand. A player can place a wager against a dealer's hand, and can separately place a wager that their own hand will achieve a rank against a fixed payout scale, irrespective of the dealer’s hand ('759 Patent, Abstract; col. 2:40-46). This dual-betting structure is a central feature.
- Technical Importance: By simplifying the betting structure of poker and providing multiple ways to win on a single deal, the invention created a fast-paced game format suitable for the casino environment and appealing to a broad range of players ('759 Patent, col. 2:5-9).
Key Claims at a Glance
- The complaint asserts infringement of "one or more claims" of the '759 Patent (Compl. ¶57). Independent claim 1 is representative of the game-against-payout-table method.
- Independent Claim 1 requires:
- placing a first single part wager to participate in a casino three-card poker-type game;
- a dealer dealing a hand consisting of three cards to each player who placed a first wager; and
- resolving each player's three card hand according to a predetermined hierarchy of poker hands.
- The complaint reserves the right to assert other claims, including dependent claims.
U.S. Patent No. 6,237,916 - Method and Apparatus for Playing Card Games (Issued May 29, 2001)
The Invention Explained
- Problem Addressed: The patent's background section notes that in prior versions of multi-wager card games, players exhibited a bias toward certain wagers over others, leading to "less than optimal" game performance, reduced player-dealer interaction, and more volatile results for the casino ('916 Patent, col. 3:5-17).
- The Patented Solution: The patent discloses a specific method for playing three-card poker designed to structure player betting. It involves a sequence of wagers: a mandatory initial "ante" wager against the dealer, an optional "Pair Plus" side wager on hand value, and a subsequent "play" wager required to remain in the game against the dealer after viewing one's cards ('916 Patent, col. 4:48-63). The resolution of these wagers is tied to whether the dealer's hand achieves a "qualifying" rank, such as a Queen-high or better ('916 Patent, col. 5:32-47).
- Technical Importance: This rule set was designed to balance the game's risk and reward, encouraging players to participate in all wagering aspects and thereby making casino revenue from the game more predictable ('916 Patent, col. 3:18-22).
Key Claims at a Glance
- The complaint asserts infringement of "one or more claims" of the '916 Patent (Compl. ¶62). Independent claim 1 is representative of the detailed game method.
- Independent Claim 1 requires:
- receiving a first wager that a player's hand will exceed a dealer's hand;
- receiving an optional second wager that the player's hand will be at least a first predetermined rank;
- dealing three cards to the player and dealer;
- receiving an optional third wager from the player to continue, otherwise the first wager is forfeited;
- determining if the dealer's hand is at least a second predetermined rank (i.e., "qualifies"); and
- resolving the wagers based on a multi-step process involving the dealer qualification outcome and a comparison of the player's and dealer's hands.
- The complaint reserves the right to assert other claims, including dependent claims.
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are software applications ("Infringing Apps") including, but not limited to, "3 Card Poker: Simulated Casino Gambling," "3 Card Poker Progressive: Simulated Casino Gambling," and "Any Card Poker: 3 Card Poker, 4 Card Poker and 5 Cards Stud Poker, Simulated Casino Gambling Table Card Game" (Compl. ¶45).
Functionality and Market Context
The complaint alleges these are online downloadable applications, available through the Apple iTunes Store, that allow users to play simulated versions of Three Card Poker (Compl. ¶¶ 44-45). The complaint contends that these apps implement the patented methods and compete with Bally's own licensed games (Compl. ¶50).
No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
The complaint does not provide element-by-element infringement analysis. The following charts summarize the infringement theory by mapping the general allegations to the elements of representative independent claims.
'759 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A method of playing a wagering game, comprising: placing a first single part wager to participate in a casino three-card poker-type game; | The complaint alleges that the Infringing Apps are systems and methods that "embody the patented invention," which would necessarily include the initial step of a player placing a wager to begin a game of three-card poker (Compl. ¶¶ 46, 57). | ¶46, ¶57 | col. 9:45-52 |
| a dealer dealing a hand consisting of three cards to each player who placed a first wager; | The apps are alleged to implement the patented method, which includes the dealing of three-card hands to the player after a wager is placed (Compl. ¶57). The software presumably performs the role of the "dealer" in dealing the cards. | ¶57 | col. 10:59-64 |
| and resolving each player's three card hand according to a predetermined hierarchy of poker hands. | The apps are alleged to be "simulated casino gambling" games based on Three Card Poker, which by definition would resolve hands based on a poker hierarchy to determine wins and losses (Compl. ¶45). | ¶45, ¶57 | col. 11:1-5 |
'916 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| receiving a first wager that a player's three-card hand will exceed a dealer's three-card hand; | The complaint alleges the Infringing Apps embody the patented invention, which includes the method of receiving an "ante"-type wager from the player (Compl. ¶¶ 47, 62). | ¶47, ¶62 | col. 4:51-54 |
| receiving an optional second wager that said player's three-card hand will be at least a first predetermined rank; | The accused apps are alleged to include a "Progressive" version, suggesting the presence of an optional side wager based on hand value (Compl. ¶45). | ¶45, ¶62 | col. 4:55-59 |
| receiving an optional third wager from said player... | The apps are alleged to implement the full patented method, which includes the step of a player placing a "play" wager to continue the hand (Compl. ¶62). | ¶62 | col. 5:16-21 |
| determining whether said dealer's three-card hand is at least a second predetermined rank... | The complaint's general allegation of infringement implies that the apps' game logic includes the dealer qualification rule central to the claimed method (Compl. ¶62). | ¶62 | col. 7:59-62 |
Identified Points of Contention
- Evidentiary Questions: The complaint makes broad allegations that the accused apps "embody the patented invention" but does not provide claim charts, screenshots, or other evidence detailing the specific game rules implemented in the software (Compl. ¶¶ 57, 62). A central point of contention will be whether Plaintiff can produce evidence showing the accused apps perform every step of the asserted method claims.
- Technical Questions: For the '916 Patent specifically, a key factual question is whether the accused apps use the specific dealer qualification rule (e.g., Queen-high or better) and the precise multi-step wager resolution logic required by the claims. The complaint does not provide sufficient detail for analysis of this point.
V. Key Claim Terms for Construction
- The Term: "casino three-card poker-type game" (from '759 Patent, claim 1)
- Context and Importance: Practitioners may focus on this term because the patents' descriptions are heavily based on physical casino environments. The Defendant, offering a "simulated" app for personal use, may argue its product does not fall within the scope of a "casino... game."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The '759 Patent incorporates by reference the '916 Patent, which states the invention can be "readily implemented in a wide variety of additional forms and media including... electronic games and devices... software as well as in-flight, home, and Internet entertainment" ('916 Patent, col. 2:65–col. 3:6). This suggests the invention is not limited to a physical casino.
- Evidence for a Narrower Interpretation: The specification of the '759 Patent repeatedly refers to a "casino wagering game" and illustrates the invention using a physical table layout (e.g., Fig. 1) and rules common in a live gaming establishment ('759 Patent, col. 1:10-12, col. 9:36-43). This language could support an interpretation that limits the claims to the commercial casino context.
VI. Other Allegations
- Indirect Infringement: The complaint alleges both inducement and contributory infringement for each patent. The allegations are based on Defendant's alleged affirmative acts of advertising, marketing, promoting, and providing instructions on how to use the Infringing Apps (Compl. ¶¶ 58, 63). The complaint also asserts that the apps have "no substantial non-infringing uses" (Compl. ¶¶ 58, 63).
- Willful Infringement: The complaint alleges that Defendant has had "specific knowledge" that its apps infringe the patents-in-suit "since at least May 2014," which predates the filing of the complaint (Compl. ¶¶ 59, 64).
VII. Analyst’s Conclusion: Key Questions for the Case
- A primary issue will be one of evidence: can the Plaintiff demonstrate, through technical analysis of the accused software, that the applications' game logic and rules precisely map to every element of the asserted method claims, particularly given the complaint’s lack of specific, element-by-element infringement allegations?
- A secondary issue may concern claim scope: can the term "casino... game," as used in the patents and primarily described in the context of physical table games, be construed to unambiguously cover a "simulated" software application for personal use, or does this present a viable non-infringement argument for the Defendant?
- A key question for the infringement analysis of the '916 Patent will be one of functional operation: does the accused software implement the specific, multi-part wager resolution process tied to a dealer "qualification" rule, a core technical feature of that patent's asserted claims?